News | Legislative & Policy Updates

Three Tribes to Begin Special Domestic Violence Jurisdiction

U.S. Justice Department Announces Three Tribes Will Begin Implementation of Special Domestic Violence Criminal Jurisdiction Under VAWA 2013

The Violence Against Women Act (VAWA) 2013 authorizes tribal governments to begin prosecuting non-Indian perpetrators of domestic violence as of March 7, 2015.  However, there is a pilot project in place that allows some tribes to begin prosecuting non-Indian perpetrators sooner.  The Justice Department (DOJ) authorized tribes to start prosecuting non-Indian perpetrators sooner IF the tribe’s criminal justice system fully protects defendants’ rights under federal law, if the tribe asked to participate in the pilot project, and if the DOJ grants the tribe’s requests and sets a starting date.  The three tribes authorized to implement criminal jurisdiction over non-Indian perpetrators are the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon.

These three tribes will now be able to investigate, prosecute, convict and sentence a non-Indians (in addition to Indians) who assault Indian spouses or dating partners or violate a protection order in Indian Country.  This limited criminal jurisdiction does not allow tribes to prosecute, convict or sentence crimes committed outside of Indian Country, crimes between two non-Indians, crimes between strangers (even if that crime is sexual assault), nor does it cover, crimes committed by a person who does not have sufficient ties to the tribal community.

Many people did not want this law to pass because they thought tribes would treat non-Indians differently than Indian criminals.  However, tribes always had the inherent sovereign right to prosecute non-Indians until 1978 when the US Supreme Court held that tribes could no longer exercise criminal jurisdiction over non-Indians.   In order to alleviate the fear that non-Indians would be treated differently, VAWA 2013 requires tribes to protect the rights of defendants under the Indian Civil Rights Act of 1968.  This is similar to the U.S. Bill of Rights, and includes the right to due process.  VAWA also requires that tribes provide counsel for defendants, assign free, licensed attorneys for indigent defendants, provide law-trained tribal judges who are also licensed to practice law, make public tribal criminal laws and rules, and record criminal proceedings.  Tribes must also include non-Indians and Indians in jury pools.  Last, tribes must also inform defendants that they have the right to file federal habeas corpus petitions.  This means that a defendant can file a legal action with the federal government seeking relief from unlawful imprisonment.  

This relief is past due.  One of three Native women will be raped in her lifetime, and three of five Native women will experience domestic violence.  VAWA 2013 and the implementation of the pilot project will be a turning point for Native women.  The pilot project will begin to stem the violence committed against Native women in Indian Country.
 
If you wish to read the language of VAWA 2013 legislation, click here: https://www.govtrack.us/congress/bills/113/s47/text.